McGINTY, Hon. James Andrew, Member, Independent Media Council

[13:31]

CHAIR: I welcome representatives from the Independent Media Council. Thank you for talking to us today. I appreciate your patience. As you could hear, the issues we were discussing with Mr Finkelstein and Professor Ricketson were important issues. Do you wish to make an opening statement?

Mr McGinty : If I might, Senator.

CHAIR: Certainly.

Mr McGinty : There are just four points I would like to address in opening. The first is the formation of the Independent Media Council. It was formed nearly a year ago, in May 2012. It was formed, although I had no role in this, out of concern about the Australian Press Council's relationship with government, especially the likelihood of increased government funding for the Press Council. That was seen as something the organisation was not happy with.

CHAIR: What organisation was that?

Mr McGinty : Seven West Media. After the three members of the Independent Media Council—that is, Christopher Steytler, Cheryl Edwardes and me—were appointed, we negotiated with Seven West Media a code of conduct, by which publications would be judged, and guidelines for our operation, that I will refer to briefly. They all appear on the website of the organisation, if you want reference to them. In drawing up those particular documents we had input from those people who might be, from time to time, complainants. I refer here to mental health groups, disability groups, Muslim organisations, a range of journalists and media academics.

The second point that I wanted to touch on was the question of independence of the organisation. The initial appointments were all made by Seven West Media. Subsequent appointments will come from a panel of names provided by the Independent Media Council to Seven West Media. The independence lies in the people who are appointed. The chairman is the former president of the Court of Appeal in the Supreme Court of Western Australia and the other two members were both Attorneys-General in Liberal and Labor governments. We made a point in our initial appointment of ensuring that the honorarium which we are paid, which is $20,000 a year, was modest so that there could be no reliance or dependency related to the financial arrangements between the members. That was quite consciously done. I do make the point that 25 per cent of the complaints that we have dealt with in our nearly a year of operation we have ruled against Seven West Media or the West Australian newspaper.

The third point I wanted to touch on was the operation of the Independent Media Council in the time that it has been operating. I want to refer to five points. One of the great advantages of the organisation is its timeliness in determining matters. They are resolved within days, not months. It is my view that an inaccurate or unfair report left to hang around for several months compounds the distress and damage that has been caused by the publication initially. The most recent determination that we made, for instance, concerned an article that appeared in the West Australian newspaper on 11 February. We published our determination in response to that complaint on 23 February. That is the sort of timeframe in which we aim to deal with matters. That has not been my experience—and I do not want to be particularly critical of the Press Council—albeit dating back some years, of the expedition with which the Press Council deals with these matters. The Independent Media Council is locally based in Western Australia, which has two advantages. It gives its members an understanding of the local context of the issue that it is dealing with and it also enables the expeditious determination of matters.

Fourthly, I raise procedural fairness. We have a number of procedures, all of which are designed to minimise legal form and to maximise the fairness to somebody who comes before the organisation and complains. We have a readers' editor, who attempts to resolve the matter internally. We then obtain from the newspaper their justification for publishing, which we provide to the complainant and ask them for their comment on that. In appropriate cases if we have a tentative view we advise the complainant of that tentative view and ask them to address that. Finally, any hearing is always done very informally, sitting around a table with much discussion, rather than formal submissions as such. Our determinations are transparent. They are all published in the newspaper on the 'Letters to the Editor' page, although we do have the right to direct that a particular determination be published more prominently, depending upon the subject matter. That has not arisen so far in our consideration. They are also published on our website. We think our publications contain clear guidance for journalists and others.

Finally, on the question of the legislation itself, if I can make some quick points in relation to the mandatory and discretionary requirements of the advocate. This relates to the self-regulatory body. It requires that it be incorporated; we are not incorporated. For my part I cannot see the benefits of incorporation for a body. We seem to have operated quite well without that incorporation. Secondly, we do not have the power to suspend or expel a member. Thirdly, we do not have the power to order retractions, corrections or apologies. We do, however, have the power to direct the placement of our ruling in relation to any particular complaint. There is also the issue of a complaint direct to the self-regulatory body. Our general modus operandi is to require that if we receive a complaint we will refer it to the readers' editor to attempt to resolve it in appropriate cases—not always. There seems to be a presumption that a complaint ought to be able to be made directly to the self-regulatory body which, while it is allowed, is not necessarily what we would encourage. We do not publish statistics, which is another discretionary requirement. My final point is that there is also the overriding requirement to minimise the number of self-regulatory bodies. They are the issues that arise in respect of the way we have been set up and operate under this new legislation, as I understand it. Thank you.

CHAIR: Thanks, Mr McGinty. I got the impression from the evidence from Mr Stokes yesterday that the fundamental issue was cost. He went to some extent yesterday to say that the cost of flying to the east was not something he wanted to impose upon his business in Western Australia. This is a new issue you have raised in relation to a matter of—shall we call it—principle. Are you saying that, if the government were funding the Press Council, Mr Stokes wanted nothing to do with that?

Mr McGinty : We were appointed to do a job. The motivation of Seven West Media, as I understood it, and as it was explained to me at the time, had a lot more to do with the relationship between the Press Council and the government, particularly as it related to funding. As I understand it, we are a very economical model. I do not know for sure, but I think our total operating costs would be $100,000 a year or less. Substantially, three honoraria and a secretarial support service are the costs that are involved, which would be significantly less than what is paid to the Press Council, as I understand it, although I cannot quantify that amount.

CHAIR: Would it be possible for you to take this on notice and provide us with some kind of running sheet with what you do compared to the Australian Press Council, so we can judge the differences?

Mr McGinty : I think that would be, Senator.

CHAIR: If you could take that on notice that would be helpful, thanks.

Mr McGinty : Yes. My experience with the Press Council is somewhat dated now. It related to my time when I was involved in politics. I always took the view that in public life you should not take defamation action; that you need to cop it on the chin and you should not really complain. I broke that once and lodged a complaint with the Press Council. So my practical experience with the Press Council which I have referred to obliquely in what I have already said related to my one complaint which I lodged with the Press Council, where I was successful, some six years ago.

CHAIR: As a former politician you are used to reading legislation; correct?

Mr McGinty : Yes.

CHAIR: Can you point out to me where this legislation destroys the democratic fabric of Australia?

Mr McGinty : No, I cannot.

CHAIR: I did not think you could. It was not a trick question, but basically that is what has been put. So you do not agree with what has been put, do you?

Mr McGinty : No. My role here, as I said, is to explain the way in which the Independent Media Council in Western Australia operates and some of the elements of the legislation as it impacts on that. The broader considerations, the broader political considerations that underpin this, are matters for others to look at and consider.

CHAIR: This is not a broader political consideration. This is legislation that could eventually encapsulate your organisation.

Mr McGinty : Yes.

CHAIR: I am simply asking a straightforward question which I think you have answered. You said that the legislation does not destroy the democratic fabric of Australia.

Mr McGinty : It would mean that our organisation, as currently structured, the Independent Media Council, could no longer exist. It certainly does that. Naturally, the limit of my input—

CHAIR: Where does it do that? Can you point me to that?

Mr McGinty : We are not incorporated and, as I understand it, that is a mandatory requirement under the legislation.

CHAIR: There would not be a problem with incorporating, would there?

Mr McGinty : That is the starting point. It is a question of timing associated with the appointment. There is a very short time frame, if this legislation is passed, which then requires the body to seek, as I broadly understand it, approval from the advocate to continue in operation. There are timing issues which I doubt whether we could comply with.

CHAIR: Do you agree with the proposition that has been put that this legislation interferes with freedom of speech and interferes with the right for editorial comment? Can you point me to any areas in the legislation where those two aspects are dealt with?

Mr McGinty : I cannot point to that in the legislation. I did not come prepared to address that because I saw those as being—

CHAIR: Would you like to take that on notice?

Mr McGinty : I am happy to do that, yes.

Senator LUDLAM: I am very interested in your contention. I understand, because these standards have just been proposed to be legislated, why you would not necessarily comply, but there is a period in which the IMC would be given leave to seek registration. Do you think it is impossible that that organisation would be able to do so in time?

Mr McGinty : My understanding is that it is a question of weeks or at best months. You might be able to correct me on that if my understanding of that is incorrect. Because of the procedures involved in discussing all of that, it would most probably mean, if my understanding of weeks and months is correct, it would be very difficult to comply.

Senator LUDLAM: It is brief. That is interesting. Is that simply because you do not think you could incorporate in time or are there other criteria that you would not be able to meet?

Mr McGinty : It is more a matter, if the legislation was passed, of then discussing, in the same way that we did initially when we were first formed, the guidelines and the code of conduct, which involved considerable discussion with relevant interest groups. We saw it as part of the validity of our existence that we would need to do that. But if it was a legislative imperative that we do it, I guess we would need to short-circuit some of those desirable processes.

Senator LUDLAM: It is useful for us to know that it may be that you would seek accreditation but that the time frames that are in the bill are unreasonable. That is something that we could actually do something about.

Mr McGinty : I guess that is the extent of the point that I am making there, yes.

Senator LUDLAM: I am presuming that you do not see anything—we have had a bit to say about this. I am actually quite concerned about, for example, what happens if Fairfax does what Seven West has done and what if News does that? You could actually break the Press Council up. You could end up with no national print media standards body, in effect. Do you acknowledge that that is something of a risk if we do not make some kind of legislative changes here?

Mr McGinty : I approach this somewhat differently to the way in which you have formulated it to me, Senator. I have taken the view that it is really a question of whether you have an acceptable level of standards which are being enforced by a self-regulatory body. It is a policy consideration for you as to whether a number of self-regulatory bodies would achieve that same objective or not. I do not see the number as being particularly important if you are obtaining a better outcome.

I mentioned before my one experience with the Press Council. The hearing was three months after the offending article was published. It was in Sydney. A joint complainant, who was a hospital patient, withdrew because of the legalistic nature of the proceedings, the requirement and the inconvenience of travelling to Sydney and the prospect of being cross examined by the media outlet. This is somewhat dated knowledge. I do not know whether this is the current method of operation of the Press Council but it certainly was then, and my experience then was quite unsatisfactory, I must say.

Senator LUDLAM: I can imagine. I tend to concur. We can hope that those sort of things have been improved. I understand that contention. Nonetheless, I do have a real concern about what would happen if another media organisation did what Seven West did and jumped out of the APC. I understand it has been made a bit more difficult to do. You have a longer lead time but it would still be possible.

Mr McGinty : Can I very quickly comment on that?

Senator LUDLAM: Yes, of course.

Mr McGinty : The point of what I was just saying was that I think the way in which complaints are now dealt with in Western Australia against the West Australian or the Seven West Media is better than what it was. If your end result is better in terms of timeliness, quality and things of that nature then I do not see a problem with proliferation if the end result is better. I would rather have proliferation than poor quality outcomes.

Senator LUDLAM: I would rather have a high quality outcome with a single regulator, I suppose.

Mr McGinty : Sure.

Senator LUDLAM: That is the objective.

CHAIR: Can I just say, on the issue of 'better', it is not a word that really gives you a lot of enthusiasm, if it is better than rubbish.

Senator LUDLAM: I have one case study.

Mr McGinty : That might well be right, Senator. Can I make this point. I think timeliness is a key element. That was absent from my experience in dealing with the Press Council six years ago. There was a whole series of other things that I have referred to which I think means—and I will try and use a more objective phrase than 'better'—

CHAIR: I think it was—

Senator LUDLAM: No, I did not start that one.

CHAIR: I will go back to Senator Ludlam. I have got myself into trouble here.

Senator LUDLAM: I have a case study that illustrates both the point that you are making and the point that I am seeking to make. It was a complaint made by Environs Kimberley and the Wilderness Society on the reporting by the West of the gas hub. You are probably familiar with this one.

Mr McGinty : Yes.

Senator LUDLAM: To back up your contention, it was handled, as far as I can tell, fairly rapidly—less than three weeks, according to the time line that I have here. With your final adjudication, can I just check: do the three of you form a consensus view or does one of you take carriage of a particular matter?

Mr McGinty : We form a consensus view.

Senator LUDLAM: The consensus view of the IMC was:

We do not consider that there was any obligation on the part of the newspaper to investigate the accuracy of what was said by the Premier before publishing what had been said by him without comment of its own.

In other words, you said there that you were fine with the West printing a demonstrable falsehood without an alternative point of view, without bothering to fact check. I believe that story ran on the front page. That does not give me a great deal of comfort that actually the obligations of editorial fairness are being met.

Mr McGinty : We took the view—and I remember that case well; it was fairly recently—that what is said by a Premier, a Prime Minister or, for that matter, a Leader of the Opposition, is in itself newsworthy and of public interest. In this particular case what the Premier of Western Australia said was said without any editorial comment whatsoever, apart from the provision of basic background information to the debate about the James Price Point gas hub.

Senator LUDLAM: It did not bother you that it was demonstrably false—that you were later provided with evidence that what the Premier said actually was not true?

Mr McGinty : We were not. There was a point of view put to us that what the Premier said was wrong. But with the report itself, no one ever questioned the accuracy that this is exactly what the Premier said.

Senator LUDLAM: He was correctly quoted in uttering a complete falsehood.

Mr McGinty : If he does, this particular issue is the subject of a continuum of media reports, as you know. It is a matter of great controversy in the west and, for that matter, nationally as well. The complainant had in fact been offered and took up the opportunity of presenting their point of view, with which the Premier would no doubt disagree, in the newspaper a month or two previously. As I recollect it, it was a half-page report putting forward the point of view of the Conservation Council of Western Australia. So it was a continuum of reporting. To us the important issue was that what was done was, without any editorialising, reported as 'the Premier said this.'

That is a matter which I think helps to contribute to the public debate. If the Premier is wrong then others can take him to task over that. When you are talking about someone of that level, reporting accurately what the Premier said was the prime requirement on the media organisation.

CHAIR: Senator, if you have another question can you put it on notice? I have to go to Senator Birmingham.

Senator LUDLAM: I will put this on notice to you. Could you confirm with a yes or no that you do not have the power to compel the paper to print a retraction or an apology?

Mr McGinty : No, we do not.

Senator LUDLAM: You can issue a determination and the paper can tell you to get stuffed?

Mr McGinty : No. The paper has to publish that determination and we can direct the paper as to where that determination is published. In an appropriately egregious case we might direct that it be published on the front page and the paper would have to comply. But not—

Senator LUDLAM: Not the actual apology?

Mr McGinty : Not an apology, retraction or correction. We do not have the power to do that.

Senator BIRMINGHAM: Just picking up on that, however, Mr McGinty, in your findings you could be making demonstrably clear that your findings are that the paper was wrong and that an apology is warranted?

Mr McGinty : Yes.

Senator BIRMINGHAM: The paper might reject that, but you can have those statements splashed across the front page if the case warrants it?

Mr McGinty : That is exactly correct.

Senator BIRMINGHAM: Mr McGinty, again to be clear, if these laws are passed in their current form, your organisation will need to make numerous changes, not just to its construct as a corporation or an unincorporated body at present; it will need to make other changes as well, it would appear, to fit the test of being accredited by the PIMA. Is that correct?

Mr McGinty : That is correct.

Senator BIRMINGHAM: You outlined in your opening statement that it is not just about getting incorporated; it is also about having to change some of the structures or requirements that exist in the government's legislation.

Mr McGinty : And they fit into two categories, Senator. Firstly, the mandatory requirements of this legislation, such as incorporation, we would need to comply with or else we simply would not be eligible to be approved as a self-regulatory body. There are other discretionary matters which the advocate would take into account in determining whether we would be a self-regulatory body. My view is that we should comply with those to the maximum extent. So we would need to review the basis upon which we were set up and some of the very important underlying principles there, yes.

Senator BIRMINGHAM: Were you not to be accredited then the journalists of the West Australian newspaper would, until such time as you are accredited, lose their exemptions under the Privacy Act?

Mr McGinty : Yes.

Senator BIRMINGHAM: In terms of how you assess matters, how does the council assess fairness and accuracy?

Mr McGinty : We measure it against our published guidelines to the extent that they are an indication. Perhaps I can give you one very quick example of that. One of the cases in which we found against the West Australian newspaper is that they published, very prominently, details of a suicide that took place. It was a euthanasia case. The guidelines are quite clear. You do not publish the detailed method of suicide. That was a case where we had a very clear guideline contained in the privacy policy of Seven West Media and Seven West Media broke its own guideline. That is a clear cut case.

With the others we attempt to provide what we can understand to be broadly acceptable community-based or our own subjective opinions on what is fair, what is honest, what is reasonable—those sorts of things—where the guidelines are not explicit, as they were in the case of euthanasia.

Senator BIRMINGHAM: Is it possible in your view to actually codify fairness, accuracy or indeed community standards, which is another requirement in the PIMA act, or does it really come down to the subjective judgement of the individuals making those decisions?

Mr McGinty : In my view you cannot codify those issues beyond the broad statements of principle. Others might be more expert in this field and maybe they can try. In my view, it is those broad statements of principle that we should use as our yardstick. I would find it very difficult myself to codify them.

CHAIR: Senator Birmingham, I am sorry to do this to you. I have this decision here and you did not uphold the complaint.

Mr McGinty : This is in the—

CHAIR: The euthanasia one, 'end of my pain euthanasia campaign'.

Senator BIRMINGHAM: There may have been different complaints—

CHAIR: Can you clarify that on notice?

Mr McGinty : I can do it very quickly now, Senator. I remember it very well. The complainant raised three issues. One was about the complicity of the journalist being involved with this person who was about to commit suicide and whether there was any obligation on the journalist in respect of her conduct. We did not uphold that part of the complaint. There was another element of the complaint which we did not uphold, but the essential point was of the West publishing the details of the suicide. We upheld the complaint in respect of that particular matter.

Senator BIRMINGHAM: If a new government regulator is to accredit the operation of the council and determine whether it actually meets requirements of fairness, accuracy and reflection of community standards, is it really the case that that government regulator is going to have to decide whether the members appointed to sit in judgement are appropriate to make those judgements rather than being able to take into consideration any codified outline of exactly what fairness, accuracy or reflection of community standards actually means?

Mr McGinty : I think that is a very significant part of it. In the case of the Independent Media Council that I am representing here today, you can also look back over the eight determinations that we have made in our almost year of operation, and perhaps also look at the extent to which the internal processes through the readers' editor have been successful in resolving a significant number of others, and the basis upon which that is done. In a sense there is a bit of case law built up, if I can put it that way, which will give an indication of the approach that we have adopted and whether that is reasonable or not. Otherwise it comes back to the ability of the individuals who are appointed to be able to bring those judgements to bear.

Senator BIRMINGHAM: Mr McGinty, at its heart do you believe this type of reform is necessary? From your liaison with complainants and members of the public since the council was established, do you think there is effective consideration of the public interest in the handling of complaints against the media in the west or do you think there is a need for some level of additional intervention?

Mr McGinty : If I can go back one step, during my time in political life I was on the receiving end of what I regarded as some very sharp, unethical reporting. The one complaint that I did lodge that I mentioned to Senator Cameron in opening was the one time I let my guard down and actually complained about it. Having been on the receiving end of that it gives you a very good insight into what ethical reporting is and, particularly in a political context, its importance to democracy, as the media being the conduit by which political parties' actions and opinions are disseminated to the broader public and therefore voting intentions are formulated.

Having said that, I think I have a good sense of it. I am very pleased with the way in which the Independent Media Council is operating. I think it is working very well in the way in which it treats complainants and the ultimate results that come through from it. I do not think this legislation will improve the service that is delivered to the public and to journalists in Western Australia. That is my view of the way in which things are operating.

I must say that the West Australian newspaper—and its 15 or 20 other subordinate newspaper outlets that are part of this; they are basically the regional newspapers in Western Australia, all part of the Seven West Media stable—is today, in my view, quite a different organisation from what it was when I was in politics and on the receiving end of what I described as some sharp reporting. So it is easier to do it these days because of the nature of the organisation; that is my point.

Senator BIRMINGHAM: Mr McGinty, you are in the unique situation where your council is handling complaints specific to one media company. Have you ever felt any influence from that media company in terms of the operation of the council, the structure of the council or the determinations of the council?

Mr McGinty : None whatsoever. Apart from my initial appointment, I have not communicated or spoken with the owner, Kerry Stokes, at all in the last 12 months. I have had no communication, other than to ask me to write an opinion piece for the West Australian, which was published in last Saturday's paper, which—

CHAIR: There is a coincidence, isn't there?

Mr McGinty : Can I perhaps give you a copy of that article because it summarises a lot of what I have had to say here today.

CHAIR: I am happy for you to table that. This is the Kerry Stokes inspired opinion piece, is it?

Mr McGinty : It was in fact Bob Cronin, who is the managing editor of the West, who rang me and asked me if I would write a piece.

CHAIR: Oh, the Bob Cronin inspired opinion piece. That is good.

Mr McGinty : It very substantially describes how the Independent Media Council has worked over its first 12 months of operation.

CHAIR: We look forward to reading it with great interest.

Senator BIRMINGHAM: Surely such pieces, given criticisms that these bodies do not have a high enough public profile, are important to raise the public profile of these organisations.

CHAIR: Thanks, Senator Birmingham. Can I ask one last question? Are there any obligations on Seven West to continue the operation of your Media Council?

Mr McGinty : No, there is not.

CHAIR: There is not. So they can pull the pin at any time.

Mr McGinty : Yes.

CHAIR: Thanks very much, Mr McGinty.

Proceedings suspended from 14:01 to 15:31